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Monday, July 11, 2005

Making the Constitution Easier to Amend

Constitution2I just posted my thoughts at Balkinization on why it would be a good idea to make the Constitution easier to amend.  Here's a clip from my argument:

I think that the best solution is to make the Constitution easier to amend. If the Court decides something the People don’t like, then they can amend the Constitution. Because the Constitution is so hard to amend, there’s a sense of paralysis when the Court issues a decision. Roe v. Wade launched a battle over the Court, and the focus has been on appointing justices who would uphold or overturn Roe. But if the Constitution were easier to amend, maybe the battle would be fought without the Court always in the balance.

Those interested in reading more (I have a lot more to say about this) can check out the extended argument over at Balkinization. 

Posted by Daniel Solove on July 11, 2005 at 01:50 AM in Constitutional thoughts, Daniel Solove | Permalink


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Please note that I did not say that the Constitution should be easy to amend, just easier -- that it shouldn't be nearly impossible. I agree with you regarding the need to restrain the majority, but there should be a way (an onerous one, but at least plausible) for a supermajority to amend the document.

Posted by: Daniel Solove | Jul 11, 2005 10:33:23 AM

The Constitution was made difficult to amend for a reason. American government, as I see it, is an excercise in slowing down popular sentiment, in making sure that something belongs in the constitution. If the majority of the people are deeply committed to doing something incredibly stupid, - e.g. the 18th Amendment - the constitution does not prevent them from doing so; it merely helps ensure that there is a sustained, nationwide majority in favor of the change.

The only change to the amendment process that I'd like to see is the substitution of purpose-elected state ratifying conventions (or even, state referendums) for the current role of the legislature.

The Constitution is, in Jefferson's phrase, "unquestionably the wisest ever yet prevented to man"; despite attempts by some on the left to undermine its legitimacy (See, e.g., Boyce, Originalism & the Fourteenth Amendment, 33 Wake Forest L. Rev. 909), it remains a towering achievement, and we should approach its amendment with great trepidation. Do you really want, the question must be, to make the Constitution the tool of the majority? It seems to me that the Constitution was designed expressly to RESTRAIN the majority. As I mentioned a few weeks back, talking about Kelo, it seems to me that the sole purpose of putting something INTO the Constitution is to take it OFF the democratic stage. By extension, the stuff which is in the constitution is the stuff we deem so important that we believe that not even a majority should be enough to remove it.

Or, put another way, if the constitution can be easily amended, what value is it anyway? If you want to pass a directive that can be amended at the whim of a majority, pass a law! What else is Congress there for? You want a right to an abortion? Pass a law! You want a right to die? Pass a law! You want to abolish the death penalty? Pass a law! The Constitution does not prevent you from doing any of these things. What is this fixation with the idea that everything that is wrong must also be made unconstitutional? In your haste to facilitate the majority, do you not remember Tocqueville's warning, that "the majority in the United States enjoys immense actual power, together with a power of opinion which is nearly as great. And once it has made up its mind about a question, there is nothing that can stop it or even slow it long enough to hear the cries of those whom it crushes in passing"? The Constitution is the only restraint on the will of the majority, and I submit that it should not be made the plaything of the political arena.

I respectfully dissent.

Posted by: Simon | Jul 11, 2005 10:25:54 AM

I wonder if Americans want the Constitution to be easier to amend. Whenever [insert interest group] wants to amend the Constitution, we hear cries of, "Don't touch this sacred document!" It's a mere political ploy, but it seems to be an effective one.

Article V notwithstanding, I think that, absent this visceral opposition to amending the Constitution, the Constitution could (relatively) easily be amended to:
A) Keep "spam" outside the protections of the First Amendment
B) Repeal Ashcroft v. Free Speech Coalition
C) Repeal Kelo v. City of New London
D) Maybe repeal Ashcroft v. ACLU

There are many other cases, to be sure, but I'm tired, and I have a brief to finish.

Of course, if you live in California (where it's easy to amend our Constitution), you might change your mind. The California Constitution reads like the Statutes at Large. And, ultimately, constitutional questions return to our Supreme Court. So I'm not sure how making it easier to amend the U.S. Constitution would reach the solution that "[i]f the Court decides something the People don’t like, then they can amend the Constitution." Courts are creative, and ultimately, will read what they want to read.

Of course, I could be embarrassingly wrong. Has anyone studied states like California, which have loose amendment procedures, to see if the People's will is better expressed? That would seem like something we as citizens would need to consider before amending Article V.

Posted by: Mike | Jul 11, 2005 3:28:54 AM

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